State v. CorbittState v. Corbitt
Dеfendant‘s petition for post-conviction relief challenges the legality of the sentence imposed on him on February 7, 1969. The facts whiсh give rise to this matter can be recited briefly. Petitioner‘s initial arrest on the charges which resulted in the sentence at issue occurred in Atlаntic City, N.J., in February 1967. He was subsequently admitted to bail. He traveled to Florida where he was eventually arrested on a separate chargе and sentenced to a term of three years. He had served a portion of that term in Florida when, on or about July 15, 1968, he was returned to New Jersey pursuant to an extradition agreement, to answer to the charge first mentioned. The extradition agreement, signed by the governors of both Florida and New Jersey, provided that it was “granted upon the express condition that said person (petitioner) be taken from and returnеd to the State of Florida * * * to be so returned as soon as the prosecution in the State of New Jersey is terminated * * *”
Petitioner was then confined in New Jersey from July 15, 1968 to March 24, 1969. During that period he was convicted on two counts of the indictment which resulted from the original charges. Hе appeared for sentence on January 2, 1969, at which time the judge imposed one sentence of 7-10
Petitioner was subsequently returned to Florida on or about Mаrch 24, 1969. He was again returned to New Jersey on September 29, 1969, apparently upon completion of the Florida sentence. He сommenced serving the two consecutive terms of 7-10 and 3-5 years on that date, and was thereafter admitted to parole by the New Jersey Parole Board on August 21, 1973. While on parole he was arrested on a federal bank robbery charge. Following an indictment and the entry of а guilty plea he was sentenced to a 10-15-year term in a federal penitentiary. The New Jersey Parole Board has issued a warrant for violation of parole, said warrant being on file at the federal penitentiary at which petitioner is presently confined. The potential revocation of petitioner‘s parole gives rise to the issue presented here.
Petitioner contends that the two consеcutive sentences imposed upon him on January 2, 1969 were to be served concurrently with the portion of his Florida sentence remaining at the time of his New Jersey conviction, and that the later clarification directing that said sentences run consecutively with the Florida sentence was illegal and invalid. See State v. Matlack, 49 N.J. 491 (1967), cert. den. 389 U.S. 1009, 88 S.Ct. 572, 19 L.Ed. 2d 606 (1967). At issue is the effect of the six months that petitioner was confined
This court finds that a sentence imposed under the circumstances presented here must run concurrently with the sentence pending in the other jurisdiction. Petitioner is entitled to appropriate credit on any time remaining on his New Jersey sentenсe.
Separate sentences imposed by a single New Jersey court will run concurrently unless the sentencing judge clearly directs that they bе served consecutively. In re De Luccia, 10 N.J. Super. 374 (Cty. Ct. 1950). The same rule applies as to the imposition of separate sentences, at separate timеs, by more than one New Jersey court. Absent specific direction to the contrary, such sentences will also run concurrently. In re Sabongy, 18 N.J. Super. 334 (Cty. Ct. 1952). Those rules have also been followed in most other jurisdictions. See 24B C.J.S. Criminal Law § 1996(2) at 661. This case, however, involves the imposition of separate sentences by courts in separate states. In that situation the presumption noted above has often been reversed. In most jurisdictions separate sentences imposed at different times by courts of different states, and silent as to their concurrent or consecutive nature, are construed as running consecutively. See 24B C.J.S. Criminal Law § 1996(6) at 677. There is, however, no New Jersey case directly on point. Those
That presumption is apprоpriately extended to the circumstances of this case. The sentencing judge had no knowledge of the pending Florida sentence, nor of the terms of the extradition agreement. It would be unrealistic, therefore, to suggest he intended the New Jersey and Florida terms to be servеd consecutively. To the contrary, under New Jersey law the sentence imposed would ordinarily commence immediately upon its imposition. Sims v. Read, 28 N.J. Super. 557 (Law Div. 1953); In re Benton, 10 N.J. Super. 595 (Cty. Ct. 1950). Here the State was a party to the extradition agreement which required petitioner‘s immediate return to Florida. The burden of calling the terms of such an agreement to the attention of a sentencing judge should rest with the State. Where the meaning of a sentence is uncertain the court should resolve such a controversy “in favor of liberty.” State v. Dento, 31 N.J. Super. 535, 541 (App. Div. 1954), cert. den., 351 U.S. 941, 76 S.Ct. 839, 100 L.Ed. 1467 (1956). That principle is particularly applicable where, as here, the lack of specificity in sentencing can be traced to the State‘s own omission.
The sentence imposed on January 2, 1969 was to run сoncurrently with petitioner‘s pending Florida sentence. The resentencing of February 7, 1969, directing that said terms be served consecutively was therefore an increase in sentence. Such an action is not authorized under New Jersey law and the prior concurrent sentence remains in effect. See State v. Matlack, supra,
It is so ordered.